Opposition Brief — MacDonald v. United States

In the Supreme Court of the Gnited States

OCTOBER TERM, 1990

ERROL MACDONALD, PETITIONER

VY.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

BRIEF FOR THE UNITED STATES

IN OPPOSITION

KENNETH W. STARR

Solicitor General

ROBERT S. MUELLER, III

Assistant Attorney General

MERVYN HAMBURG

Altorney

Department of Justice

Washington, D.C. 20530

(202) 514-2217

QUESTION PRESENTED

Whether exigent circumstances justified the warrantless

entry into an apartment used’ by petitioner and his ac-

complices as a place to sell drugs.

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TABLE OF CONTENTS

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TABLE OF AUTHORITIES

Cases:

Dorman v. United States, 435 F.2d 385 (D.C. Cir.

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Lewis v. United States, 385 U.S. 206 (1966) ....

Michigan v. Clifford, 464 U.S. 287 (1984) .....

Michigan v. Tyler, 436 U.S. 499 (1978) ........

Minnesota v. Olson, 110 S. Ct. 1684 (1990) ....

Minnesota v. Olson, 436 N.W. 2d 92 (Minn.

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Welsh v. Wisconsin, 466 U.S. 740 (1984) ......

Constitution and statutes:

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In the Supreme Court of the Gnited States

OCTOBER TERM, 1990

No. 90-845

ERROL MACDONALD, PETITIONER

v.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

BRIEF FOR THE UNITED STATES

IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeais en banc, Pet. App.

la-25a, is reported at 916 F.2d 766. The earlier opinion of

the panel is reported at 893 F.2d 482.

JURISDICTION

The judgment of the court of appeals en banc was entered

on October 1, 1990. The petition for a writ of certiorari was

filed on November 29, 1990. The jurisdiction of this Court

is invoked under 28 U.S.C. 1254(1).

STATEMENT

Following a jury trial in the United States District Court

for the Southern District of New York, petitioner and

(1)

2

co-defendant Paul Thomas were convicted of possessing co-

caine with the intention to distribute it, in violation of 21

U.S.C. 841(a)(1), and carrying a firearm during the com-

mission of a drug trafficking offense, in violation of 18

U.S.C. 924(c). Petitioner was sentenced to consecutive terms

of 51 months’ imprisonment on the possession offense and

five years’ imprisonment on the firearms offense, to be fol-

lowed by a five-year period of supervised release. The court

of appeals affirmed Thomas’s conviction, but a divided

panel reversed petitioner’s conviction after holding that it

rested on evidence seized in violation of the Fourth Amend-

ment. The en banc court of appeals vacated the panel’s

Fourth Amendment holding and held that seizure of the

evidence was justified by exigent circumstances. It therefore

affirmed petitioner’s conviction.

1. A confidential informant reported that narcotics were

being sold at Apartment 1-O, on the first floor of an apart-

ment building at 321 Edgecombe Avenue in Manhattan. On

the evening of September 8, 1988, agents of the New York

Drug Enforcement Task Force conducted surveillance at

that address. They observed a steady stream of cars stop

while passengers briefly visited the apartment building. One

agent followed several visitors inside the building and saw

them enter Apartment 1-O for two or three minutes and

then leave. Pet. App. 3a-4a; Gov’t C.A. Br. 4.

Some of the agents followed one of the cars as it left 321

Edgecombe and stopped it several blocks away. The oc-

cupants of the car said that armed men were selling cocaine

and marijuana in Apartment 1-O and that they were not

limiting their sales to past customers. Gov’t C.A. Br. 5.

At 9:50 p.m., one of the agents attempted to make a con-

trolled purchase. He knocked on the door of Apartment

1-O and was ucimitted. Inside the apartment he saw six men,

including Thomas and petitioner. Thomas was sitting by

3

the door holding a cocked pistol that was pointed at the

floor but in the agent’s direction. Petitioner was sitting on

a couch counting a large stack of money. Next to him was

a .357 magnum revolver. A large quantity of cocaine and

marijuana lay on a couch and a table. Pet. App. 4a; Gov't

C.A. Br. 5-6.

The agent told the man who had admitted him that he

wanted $5 worth of marijuana. Another man handed the

agent a small bag of marijuana. The agent paid him with

a $5 bill whose serial number had been recorded. The agent

left the apartment and reported his observations to the other

Task Force agents. Pet. App. 4a; Gov’t C.A. Br. 6.

About ten minutes later, an agent knocked on the door

of the apartment and announced his identity. The agents

standing by the door heard sounds of shuffling feet inside

the apartment and received a radio call from agents out-

side the building that the suspects were trying to escape

through a bathroom window. Pet. App. 4a-5a; Gov't C.A.

Br. 6.

The agents forced their way into the apartment. They

found one man hiding in a closet and four, including peti-

tioner and Thomas, in the bathroom trying to escape

through a window. In plain view the agents saw two load-

ed weapons, a large quantity of cocaine and marijuana, nar-

cotics paraphernalia, packaging materials, and several thou-

sand dollars in cash. The unidentified sixth man —the one

who had sold the marijuana to the undercover agent —

escaped. Pet. App. Sa; Gov’t C.A. Br. 6-7.

2. Before trial, petitioner moved to suppress the

evidence seized as a result of the agents’ entry into Apart-

ment 1-O. Petitioner claimed that the entry was illegal

because the agents had no warrant. The government con-

tended that exigent circumstances excused ti absence of

a warrant. The district court agreed with the government

and denied the suppression motion. Pet. App. Sa-6a.

4

A divided panel of the court of appeals reversed peti-

tioner’s conviction. The majority held that the circumstances

were not exigent because there was no urgency to enter the

apartment until the agents knocked on the door. 893 F.2d

at 486-491. The dissenting judge maintained that the totality

of the circumstances established a need for immediate ac-

tion and that the officers did not manufacture the exigency

by knocking on the door. Jd. at 491-493.!

3. The en banc court of appeals reheard the issue that

had divided the panel and affirmed petitioner’s conviction.

Pet. App. la- 25a; see id. at 3a n.1. The majority held that

the district court had not committed clear error in finding

exigent circumstances. /d. at 7a. Applying the multi-factor

balancing test suggested in Dorman v. United States, 435

F.2d 385, 391 (D.C. Cir. 1970) (en banc), Pet. App. 7a-8a,

the majority determined that “all the Dorman factors were

present” and that “the district court’s determination was far

from clearly erroneous,” /d. at 9a. In particular, the ma-

jority found that the offenses under investigation were

grave, the suspects were armed with loaded, semi-automatic

weapons, the agents had first-hand knowledge of the crimes,

the suspects were in the apartment and might escape if not

swiftly apprehended (as one did), and the agents acied

lawfully by attempting to make a peaceful entry. /did.

In addition to the Dorman tactors, the majority cited

several other reasons why the circumstances were exigent.

Pet. App. 9a-10a. Those reasons included the immediate

public danger presented by the presence of loaded weapons

and ongoing drug trafficking inside an apartment building,

the urgent need to preserve evidence in the face of infor-

mation that the suspects had access to another unidentified

apartment in the same building, the possibility of losing the

The pane: unanimously affirmed co-defendant Thomas's convic

tion becuse he lacked a legitimate expectation of privacy in Apart-

ment 1-QO. 893 F.2d at 483-484.

prerecorded $5 bill, the ease with which the drugs could be

flushed down a toilet, the danger to the public during the

period necessary to obtain a warrant, and the difficulty of

obtaining a warrant quickly in the middle of the night, while

the apartment continued to serve as an outlet for retail drug

sales. fiid.

The majority rejected petitioner’s contention that the

agents manulactured the exigent circumstances by knock-

ing on the door and announcing their presence. Pet. App.

lla-1Sa. First, the majority sustained “the district court's

finding that exigent circumstances existed prior to the

knocking.” /d. at lla. Second, the majority reasoned that

since “the agent who made the undercover purchase would

have been entitled to arrest the suspects in the apartment

at the time of the purchase,” the agent did “not need a war-

rant to reenter the apartment within ten minutes, having

exited only to secure proper protection by obtaining rein

forcements.” /bid. Third, the majority pointed out that the

officers acted according to law, which permits an attemp!

to make a peaceful entry. /d. at |la-12a.

Judge Kearse, joined by Chief Judge Oakes and Judge

Feinberg, dissented. Pet. App. 16a-2Sa. They maintained

that exigent circumstances did not exist before the agents

announced their presence and that knocking on the door

to the apartment impermissibly manufactured the emer

gency. Lbid.

ARGUMENT

The en banc court of appeals applied the correct legal!

Standarc to the undisputed facts of this case. Its determina

tion that the district court’s “fact-specitic” (Pet. App. 7a)

finding of exigent circumstances was not clearly erroneous

is correct and does not conflict with any decision of this

Court or any other court of appeals. Further review ts no!

warranted.

‘ 6

1. The en banc court of appeals’ decision is consistent

with this Court’s decision last Term in Minnesota vy. Olson,

110 S. Ct. 1684 (1990). In Olson, this Court held that the

state court “applied essentially the correct standard in deter-

mining whether exigent circumstances existed” when that

court observed that a warrantless entry is justified by, inter

alia, “imminent destruction of evidence, * * * the need to

prevent a suspect’s escape, or the risk of danger to the police

or to other persons inside or outside the dwelling.” Jd. at

1690. This Court added that, as the state court had noted,

“the gravity of the crime and the likelihood that the suspect

is armed should be considered.” Jbid. On the facts of Olson,

the Court was “not inclined to disagree with [the state

court’s] fact-specific application of the proper legal stand-

ard.” Ibid.

Like the state court in Olson, which relied on the Dor-

man factors for determining the presence of exigent cir-

cumstances, Minnesota v. Olson, 436 N.W. 2d 92, 97 n.1

(Minn. 1989), the court of appeals here found exigent cir-

cumstances under the Dorman test, Pet. App. 7a-9a. It sus-

tained the district court’s findings that the agents had first-

hand knowledge of a grave violation of the narcotics laws

by six suspects armed with semi-automatic weapons. ?

At the time of the undercover purchase, the agent inside

the apartment had only three options: (1) draw his weapon

and arrest the suspects; (2) stake out the residence while a

? Petitioner errs in stating that the decision below is the first to ap-

prove a warrantless entry based upon the type of crime or the presence

of weapons. Pet. 4. This Court in Olson spoke approvingly of the state

court’s consideration of “the gravity of the crime and the likelihood

that the suspect is armed.” 110 S. Ct. at 1690. In Welsh v. Wisconsin,

466 U.S. 740, 753 (1984), this Court stated that “an important factor

to be considered when determining whether any exigency exists is the

gravity of the underlying offense for which the arrest is being made.”

“a

search warrant was obtained (a process that the district court

determined “would have taken a.matter of hours,” C.A.

App. 157); or (3) leave the apartment and reenter with rein-

forcements. The first option would have invited a shoot-

out with the suspects, who outnumbered the agent six to

one. The second option carried the risks that the stake-out

would be discovered, that the contraband would be sold,

or that the marked money would be given out as change.

The third option was the only sensible one under the cir-

cumstances. As the district court and the court of appeals

correctly determined, the Fourth Amendment did not re-

quire the agent either to beat the suspects to the draw or

to let them vanish into the night while he attempted to ob-

tain a warrant. To the contrary, the circumstances were suf-

ficiently exigent to justify an immediate, warrantless reen-

try into the apartment.

2. bei..ioner contends that the court of appeals’ deci-

sion “obliterat[es]” the Fourth Amendment warrant require-

ment and signals that in the future police need only have

probable cause and knock on the door in order to enter a

dwelling without a warrant. Pet. 4. Petitioner’s contention

is simply another way of asserting that the agents manufac-

tured exigent circumstances in this case. The facts of this

case belie that contention.

a. Theen banc court of appeals correctly sustained “the

district court’s finding that exigent circumstances existed

prior to the knocking” and warrantless entry into the apart-

ment. Pet. App. lla (emphasis added). Although the court

of appeals pointed to a number of such circumstances, /d.

at 9a-10a, three of them deserve particular note.

First, the agents could well surmise that their surveillance

would be reported by the occupants of the car the agents

stopped during the evening. Although the stop itself oc-

curred out of sight of the apartment, the agents could not

safely assume that the occupants would not subsequently

telephone the apartment and tip off their suppliers to the

agents’ presence.

Second, allowing the suspects to go about their “business

as usual” would have resulted in the sale of much if not all

of the contraband and perhaps the loss of the prerecorded

$5 bill if it was given out as change in a subsequent trans-

action. Thus, even if the suspects had remained open for

business until the agents obtained a warrant, the ongoing

transactions might well have reduced or eliminated the

evidence against them.

Third, there was a substantial risk that the suspects would

leave the apartment before a warrant could be obtained.

It was already 10 p.m. by the time the agent made the con-

trolled purchase. As the district court found, at least two

more hours would have passed before the agents could have

obtained a search warrant by telephone. In that cir-

cumstance, there was a real risk that the suspects would close

up shop and that the police would lose their opportunity

to seize the evidence and arrest the suspects.

b. Even if exigent circumstances did not exist prior to

the agents’ knock on the apartment door, the police officers’

reentry into the apartment shortly after the undercover

agent’s departure was not unreasonable on the ground that

it was effected without a warrant.

The agent’s initial entry into the apartment on the pretense

that he was a bona fide customer was lawful and did not

require the authority of a warrant. See Lewis v. United

States, 385 U.S. 206, 211 (1966).* Once lawfully in the apart-

> As the Court reasoned in Lewis:

Without question, the home is accorded the full range of Fourth

Amendment protections. But when, as here, the home is converted

into a commercial center to which outsiders are invited for pur-

poses of transacting unlawful business, that business is entitled to

no greater sanctity than if it were carried On in a store, a garage,

a car, or on the street. A government agent, in the same manner

wee ks Carat seeretnens on eme nn wane ane nee

9

ment, the agent could properly see and hear anything re-

vealed by the suspects, including the drugs and guns in his

plain view. See id. at 210. In light of his first-hand obser-

vations, “there is no doubt that the agent who made the

undercover purchase wouid have been entitled to arrest the

suspects in the apartment at the time of the purchase.” Pet.

App. Ila.

Because the agent could have stayed, arrested the suspects,

and seized the contraband and guns in plain view, the im-

mediate reentry with reinforcements was merely a “continua-

tion of the first” entry and like it did not require a warrant.

See Michigan v. Tyler, 436 U.S. 499, 511 (1978) (warrantless

reentries “were no more than an actual continuation of the

first [entry to extinguish fire], and the lack -of a warrant

thus did not invalidate the resulting seizure of evidence [of

arson]”); cf. Michigan v. Clifford, 464 U.S. 287, 296-297

(1984). As the court of appeals held, “[iJt follows that the

undercover agent here did not need a warrant to reenter the

apartment within ten minutes, having exited only to secure

proper protection by obtaining reinforcements. This is not

the kind of scenario that needs the detached judgment of

a neutral magistrate to determine whether there is probable

cause for an arrest and search.” Pet. App. Ila.

as a private person, may accept an invitation to do business and

may enter upon the premises for the very purposes contemplated

by the occupant. * * *

385 U.S. at 211.

10

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

KENNETH W. STARR

Solicitor General

RoBERI S. MUELLER. III

Assistant Attorney General

MERVYN HAMBURG

Attorney

FEBRUARY 199]